A California appellate court has sided with the defendants in an alleged take-home asbestos exposure case. Petitpas v. Ford Motor Company (July 5, 2017, B245027) —Cal.App.5th—presents many strong arguments for defendants, including what is required to show that an asbestos product was a substantial factor in causing asbestos disease.

Plaintiffs Joseph and Marline Petitpas alleged that Joseph Petitpas’ work at a gas station owned by Exxon and at various construction sites brought home asbestos which injured Ms. Petitpas.

I. Take Home Exposures – Duty Not Extended

While the appeal was pending, the California Supreme Court issued its opinion in Kesner v. Sup. Ct. (2016) 1 Cal.5th 1132. Kesner allowed take home cases to be brought in California. However, it limited those cases to household members, reasoning that “persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time” are protected. (Id. at 1154-1155.) In Kesner, the injured person was the nephew of a worker who lived for periods of time with his uncle, who manufactured brake linings. In Petipas, Plaintiffs conceded that the parties did not live together when Mr. Petitpas worked at the Exxon station (they were married later). The court in Petipas declined Plaintiffs’ invitation to extend the duty in take home cases to non-household members. “Inviting a trial to determine whether a non-household member’s contact with the employee was ‘similar to the status of a household member’ appears to be exactly what the Supreme Court was attempting to avoid with this bright-line rule.”

II. Substantial Factor – Probable vs. Possible

To meet their burden in an asbestos case, plaintiffs must show that there is exposure to a defendant’s product that was “in reasonable medical probability” a substantial factor in bringing about the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) Many factors are considered to determine if the exposures are substantial factors, including frequency, proximity and duration of the exposures. The evidence in this case merely suggested it was possible that Mr. Petitpas brought asbestos dust home on his clothing from his inspection of construction jobs. He only did this for an hour a day and returned to his office for the remainder. Neither Plaintiff testified that Ms. Petitpas shook out his clothes when washing them. Further, it was merely possible she was exposed when visiting the construction sites, because there was no active construction occurring and there was no visible dust. Mere presence of asbestos at a site was simply not sufficient to show that asbestos-containing products used at these sites was a substantial factor in causing Ms. Petitpas’ mesothelioma.

III. Replacement Parts Doctrine – Applies to Defect as Well as Failure to Warn Claims

Ford submitted a jury instruction which stated that it was not liable for exposure to replacement brakes, clutches and gaskets on Ford vehiclesthat were manufactured by parties other than Ford. This instruction was based upon O’Neil v. Crane Co. (2012) 53 Cal.4th 335. The O’Neil decision established that a product manufacturer cannot be held liable in strict liability or negligence for harm caused by another manufacturer’s product “unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.” Plaintiffs objected that O’Neil only applied to failure to warn cases, and that Ford’s design was defective because “it is a Ford design that called for the installation and inclusion of asbestos-containing brake products, whether or not they were made by Ford or anyone else.” The court rejected Plaintiffs’ argument because they did not present any evidence that the Ford cars were unable to use non-asbestos parts or were somehow incompatible with non-asbestos parts.

IV. Jury Instructions in Asbestos Cases

Plaintiffs also argued that the trial court committed error by allowing jury instructions CACI Nos. 430 and 435 to be read to the jury. Both of these instructions give the jury direction on what a “substantial factor” is under California law. CACI No. 430, the generally applicable instruction, defines “substantial factor” as a factor that “contributed to the harm.” This Use Notes for this instruction state that it should not be read in asbestos related cancer cases. However, Exxon argued that CACI No. 430 was applicable to it because it was a premises liability defendant, not a product manufacturer or supplier. CACI No. 435 is the instruction for asbestos cancer cases.

CACI No. 435, applicable in asbestos cases only, defines “substantial factor” as one that “contributed to the risk,” not just the harm. Plaintiffs argued that using CACI No. 430 confused the jury and imposed a greater burden on them.

The court allowed both instructions to be read. “That the Use Notes caution against giving the more general CACI No. 430 in a mesothelioma case, when the more specific instruction CACI No. 435 is more applicable, does not support a conclusion that it was error to give both instructions. CACI No. 430 is a correct statement of the law relating to substantial factor causation, even though, as Rutherford noted, more specific instructions also must be given in a mesothelioma case.”

V. No Studies Show Take-Home Hazards from Brake Repair

The jury found that Exxon did not know, and should not have reasonably known, that Mr. Petitpas’ work at the gas station put Ms. Petitpas at unreasonable risk.

Plaintiffs argued that because the management at Exxon refineries knew about the hazards of asbestos, their agents at service stations also knew. The court did not agree with this argument. Since the jury only heard evidence that conditions at other locations posed a risk to other classes of employees (which Exxon knew about), the jury properly found that Exxon did not know about the risks at its service stations.

The Petitpas court went so far as to suggest that had the jury found otherwise, it would have to be reversed. Dr. Castleman admitted that there were no studies “of any statistical power…that speak of the mesothelioma risk of mechanics that do brake repair work” and that no such studies exist today. Plaintiff’s expert Dr. Horn also conceded this fact. Therefore, the court reasoned, “There was no evidence linking asbestos exposure to occasional bystanders who were near automotive workers as they did brake work.” The court’s conclusion in Petitpas can and should be used as an argument in all brake take-home repair cases.

This decision bodes well for defendants challenging plaintiffs’ often broad and sweeping allegations in asbestos cases.

Dr. Ernest V. Quiroz was allegedly exposed during his childhood to asbestos brought home on his father’s work clothes from the Reynolds Metals extrusion plant in Phoenix. Dr. Quiroz left the family home at age 14 to attend seminary high
school in Los Angeles. He gave up plans for the priesthood after meeting the girl he would marry, and instead attended college in Los Angeles and medical school in Michigan before entering practice in Grand Rapids in the 1980s. Dr. Quiroz was diagnosed with mesothelioma in 2013, and died the following year at age 62. Dr. Quiroz testified in his deposition that he never entered the Reynolds Metals extrusion plant, and acknowledged that his only asbestos exposure related to Reynolds Metals would have been from his father’s work clothes. The trial court granted Reynolds Metals’ summary judgment motion based on the lack of duty under Arizona law to an employee’s family members. Plaintiffs timely appealed.

The Court’s Analysis

Dr. Quiroz was a very sympathetic claimant – potential priest, respected doctor, lay leader of his church, devoted husband and father with five children and six grandchildren – and absolutely no occupational or para-occupational exposure. His family and counsel, Waters Kraus & Paul, sought to use this case to extend liability for take-home exposure beyond the limited number of states that have recognized the claim. Acknowledging that there was no “special relationship” between Reynolds Metals and Dr. Quiroz, plaintiffs argued that premises owners such as Reynolds Metals had a duty to protect persons from hazards which foreseeably left their premises based on three main grounds: (1) Restatement (Third) of Torts §7 (imposing a general duty of reasonable care on all persons), (2) Restatement (Third) of Torts §54 (imposing a duty of care on possessors of land “for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land”), and (3) “public policy.”

The Court of Appeals rejected each of plaintiffs’ arguments and affirmed the trial court’s grant of summary judgment. Consistent with the common law around the country, the existence of a duty of care is a pre-requisite for a negligence claim in Arizona. However, the Arizona Supreme Court has steadfastly rejected any consideration of foreseeability in determining the existence of a duty of care. The Quiroz court noted that Arizona had previously declined to adopt any general duty of care such as that in Restatement (Third) of Torts §§7 and 54, and it declined to do so here as well, explaining that doing so would:

substantially change Arizona’s longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action. . . . The Third Restatement approach significantly lessens the role of the court as a legal arbiter of whether society should recognize the existence of a duty in particular categories of cases; for this reason, adopting the Third Restatement would increase the expense of litigation.

The court further declined plaintiffs’ invitation to either follow Restatement (Second) of Torts § 371 (imposing on a possessor of land liability for physical harm to others outside of the land caused by an activity thereon which he realizes or should realize will involve an unreasonable risk of physical harm) or to recognize a duty on the part of Reynolds Metals as a landowner to Dr. Quiroz, because those theories do – but Arizona does not – consider foreseeability in determining whether a duty of care exists.

Quiroz also rejected plaintiffs’ argument that public policy supported imposing a duty of care, in part because plaintiffs offered no statutory or common law basis for the public policy beyond the Restatement sections discussed (and rejected) above. The court also rebuffed Plaintiff’s argument that “any property owner could reasonably expect that a lack of due care in handling toxins on its premises, resulting in off-premises injury, could lead to liability,” which the court saw this as putting the cart before the horse: “A finding of a duty of care must come before considering whether Reynolds exercised due care.” The court further questioned where the dividing line would be if claims by person off-premises were permitted – would they be limited to family members with regular exposure, or could claims be brought by persons with more tangential alleged exposure, and would such an expansion result in unlimited or insurer-like liability? As Quiroz explained, other states around the country which, like Arizona, do not employ foreseeability in their duty analysis have all rejected claims based on take-home exposure for these and other reasons. Because there was no basis under Arizona law for any duty of care on the part of Reynolds Metals to Dr. Quiroz, no negligence claim could be stated and summary judgment was correctly granted.

Although the Arizona Supreme Court has repeatedly addressed the lack of any role of foreseeability in determining the existence of a duty under Arizona law, we anticipate that Plaintiffs will seek review of the Court of Appeals decision here.

Plaintiff Doris Jane Neumann alleges that she contracted malignant mesothelioma through exposure to asbestos-containing products as a result of laundering the clothes of her son, who used asbestos-containing friction paper during his work as a mechanic. Originally filed in state court, the case was removed to federal court on diversity grounds. Subsequently, defendant MW Custom Papers moved for dismissal under Federal Rule of Civil Procedure 12(b)(6), alleging that it could not be found liable for negligence because it did not owe Doris Jane Neumann a duty of care under Illinois law.

In ruling on the motion, the federal district court noted with frustration that there was a split of opinion among Illinois appellate courts on the issue. The Illinois Supreme Court had the opportunity to decide the issue in Simpkins v. CSX Transp., Inc., 2012 Ill. LEXIS 330, 965 N.E.2d 1092 (2012), but declined to issue a definitive ruling. Thus, the Illinois Supreme Court never actually answered the question as to whether a “take home” duty of care existed in Illinois asbestos cases. As a result, the holding in Neumann takes on a heightened significance.

Neumann analyzed the following four factors set forth in Simpkins: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden upon the defendant. At the outset, the court determined that the foreseeability factor was sufficiently met under the liberal notice pleading standard used in federal court. Moreover, MW Custom Papers did not challenge the “likelihood of injury” factor. Importantly, the court emphasized that plaintiff completely failed to address the third and fourth policy-driven factors in her briefs and exclusively focused her arguments on the foreseeability factor, which “is not the only factor to be considered.” Although the court found “no precedents or other authorities that convince us how the Illinois Supreme Court would rule on this novel duty question,” it found two Illinois appellate decisions that addressed this issue, but came to opposite results. Lastly, the court looked toward outside jurisdictions for direction, where it once again found divided opinions throughout the country. “While the majority of courts have declined to extend a duty in this situation, that fact alone is not persuasive, particularly because duty and negligence principles vary among states.”

Neumann gleaned some guidance from the Seventh Circuit, which instructed that “[w]hen we are faced with two opposing and equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability.” Applying this reasoning, the court adopted the more narrow view, finding that MW Custom Papers did not owe a duty to Neumann in light of the magnitude of the burden of protecting her and the potential ramifications of imposing that heavy a burden on MW Custom Papers.

A settlement reached after oral argument at the California Court of Appeal will likely leave unresolved two questions: (1) whether the consumer expectations test can impose liability on a manufacturer for “take-home” exposure, and (2) whether there should be liability, including punitive damages liability, for take-home exposure that occurred before any scientific studies indicating that take-home exposure was a potential health risk. Despite the proliferation of lawsuits alleging this fact pattern, no California appellate case has ever held that a product manufacturer owes a duty of care to household members of persons exposed to their products.

Grigg v. Owens-Illinois, Inc. involved a woman who allegedly contracted mesothelioma from being exposed to asbestos dust brought home the clothes of her husband, an Owens-Illinois insulation clothes, in the 1950s. “Take-home exposure” lawsuits are increasingly common in the world of asbestos litigation, as well as in cases alleging exposure to other allegedly harmful substances. The jury awarded Mrs. Grigg approximately $27 million, including $11 million in punitive damages against Owens-Illinois. The case presented the as yet unanswered question of the scope of a manufacturer’s duty to family members of persons who work with their products, in the context of the consumer expectations test for strict products liability.

At oral argument in September 2015, the panel appeared skeptical of the plaintiffs’ argument that there is no person who is outside the class of persons who could recover under a consumer expectations theory in a take-home exposure case. The court suggested that the plaintiffs’ argument was a rule of absolute liability because it “doesn’t matter” who the injured person is or what are the details of their relationship to the take-home vector. On the other hand, the court inquired of Owens-Illinois’ counsel why there should be a distinction between the well-established liability for injuries to bystanders to work with a manufacturer’s product and liability for injuries to persons exposed by take-home exposure.

The case also presented punitive damages issues. Owens-Illinois argued that (as all experts in the case agreed) no published medical literature indicated hazards to family members of insulation workers until years after Mrs. Grigg’s take-home exposure, and that studies which Plaintiffs argued reflected the required “actual knowledge” to support punitive damages were conducted to determine hazards to workers themselves, not to their family members. Plaintiffs countered that reports of testing conducted prior to Mrs. Grigg’s exposure indicated that asbestos dust from insulation was “hazardous” and that “every precaution” should be taken to avoid breathing that dust. The panel’s feelings about these arguments were less clear than about the ultimate liability issue, but the court did press plaintiffs’ counsel to confirm that these studies were the only evidence he believed supported the punitive damages award.

Ted Pelletier of the Kazan law firm argued for the plaintiffs, and Robert Riley of Schiff Hardin argued for Owens-Illinois.

The parties informed the court on October 6, 2015 that they settled the case. Even so, the court retains jurisdiction over the case and may issue an opinion. While that is unlikely, it will happen, if at all, within 90 days from the date of argument. If it does not, these issues will remain unresolved in California for the time being.

On August 20, 2014, the California Supreme Court granted review in two “take-home” asbestos exposure cases, Kesner v. Superior Court (2014) 226 Cal.App.4th 251, a negligence and products liability case, and Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104, a premises liability case. “Take-home” cases, aka “secondary exposure” cases, involve plaintiffs alleging exposure to a harmful substance, not from working with a product or at a site that contained the substance, but through their contact with a person (oftentimes a family member) who brought the substance home on their clothing, tools or vehicles.

The key issue in most take-home cases, which is discussed at length in the Kesner and Haver opinions, is whether the defendant employer or premises owner has a legal duty to these plaintiffs. In granting review, the California Supreme Court has an opportunity to curb the number of “take-home” cases asserted in this state.

In Kesner, the plaintiff was sometimes a guest at the home of his uncle, who was employed by defendant Abex manufacturing asbestos-containing products. Kesner held that this was sufficient to create a duty, and that an employer’s duty of care “runs at least to members of an employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing.” Kesner focused on the foreseeability of harm.

Kesner distinguished the seminal California “take-home” case of Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15,which held that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.” Kesner held a “different balance must be struck” when analyzing a negligence claim than with (as in Campbell) a premises liability claim. Kesner “did not question the conclusion in Campbell.” In essence, Kesner carved out an exception to Campbell, allowing the plaintiffs to skirt the bright-line rule by bringing take-home claims under a products liability theory.

A month after the Kesner decision, the Haver court found no “take-home” duty and affirmed a demurrer in favor of defendant BNSF Railway. The plaintiff was the son of the decedent, alleging his mother inhaled asbestos fibers from her contact with her former husband, who used to work for defendant’s predecessor. On appeal, the plaintiff argued that Campbell was improperly decided or, in the alternative, that the Kesner case compelled a different outcome. The Haver court rejected both of plaintiff’s arguments, holding instead that “Campbell made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency … or the worker’s employment relationship with the landowner.”

As a result of the California Supreme Court’s decision to grant review, the Kesner and Haver decisions have been depublished and may not be cited in California, leaving Campbell as the law in California while the appeals are pending. The decisions may still be cited in most jurisdictions outside California,

It should be noted that the holding in Campbell is not followed in all jurisdictions. For example, courts in New Jersey (Olivo v. Owens-Ill., Inc. 186 N.J. 394, 404 (N.J. 2006) (premises liability)), Louisiana (Chaisson v. Avondale Industries, Inc., 947 So.2d 171(La. App. 2007) (premises liability)), and Tennessee (Satterfield v. Breeding Insulation Co. 266 S.W.3d 347, 366-367 (Tenn. 2008) (negligence)) have found that an employer or landowner has a legal duty.

In Kesner, Gordon & Rees partner Don Willenburg submitted an amicus brief on behalf of two defense counsel organizations. The amicus brief argues that Campbell should control all take-home cases, and that a contrary rule (like that the Kesner court adopted) would open the door to a potentially limitless pool of plaintiffs claiming lung cancer and other diseases.

The Kesner and Haver decisions will likely generate significant amicus interest. Amicus briefs are generally filed shortly after the final reply brief of the parties, or about three-four months from now. There is no set timetable for the California Supreme Court to hear argument on or decide the matter after briefing, but we estimate a decision may issue in about 18-24 months. Gordon & Rees has extensive experience in appeals on a wide variety of legal issues and has submitted numerous amicus briefs in cases that resolved favorably for the defense.

The California Supreme Court should adopt the rule in Campbell and the majority of other jurisdictions. And, in the opinion of the author, the holding should extend to premises liability, product liability, and negligence claims to reflect a unifying legal principle that an employer or landowner – even if the employer or landowner also happens to be a manufacturer – has no legal duty to protect someone from secondary exposure who never used the product or never visited the site.

In Kesner v. Pneumo Abex LLC,decidedMay 15, 2014, the California Court of Appeal found a duty to protect against “take-home” exposure. The decision extends this duty beyond immediate family members, and is in apparent conflict with an earlier decision, Campbell v. Ford Motor Co., which ruled against any “take-home” duty. At the same time, Kesner’s effect may be limited by such factors as the decision’s attempts to distinguish Campbell and the particular procedural posture of the case.

Johnny Blaine Kesner is the nephew of an employee of a brake lining manufacturer. He claimed asbestos exposure due to intermittent visits, some long-term, with his uncle, and alleged that his uncle brought asbestos dust home. The trial court, based on Campbell, granted the manufacturer’s motion for nonsuit. The Court of Appeal reversed, because the complaint alleged the manufacturer was aware of asbestos hazards and “that Kesner’s contact with his uncle was extensive. As to such persons, the foreseeability of harm is substantial.” Under “the standard for reviewing the sufficiency of the allegations of the complaint” on nonsuit, that was enough to send the case back for trial.

The Kesner decision may come as a surprise given the 2012 decision in Campbell, which held that a premises owner owed no duty to the family members of employees of independent contractors who worked at the premises. In Campbell, the plaintiff asserted her brother and father, insulators at the premises, had brought asbestos dust home on their clothes. She claimed she developed mesothelioma from handling and laundering these work clothes. Campbell found no duty. (Interestingly, the decision was modified after first issued specifically to clarify that Ford was a premises owner and not the employer.)

Kesner recognized several limits to the scope of its ruling. One was “that the existence of the duty is not the same as a finding of negligence.” Another was that where “contact with an employer’s worker is only casual or incidental, the foreseeability of harm and the closeness of the connection between the defendant’s conduct and the plaintiff’s injury may be so minimal” as to find that no duty exists.

Kesner did “not question the conclusion in Campbell” and distinguished between “Ford’s passive involvement as owner of a plant in which an independent contractor was installing asbestos insulation” and the facts of Kesner, which involved a negligence claim against a “manufacturer of asbestos-containing brake linings.” Nevertheless, the apparent conflict between Kesner and Campbell suggests possible California Supreme Court review.

If the Kesner decision is not reversed or depublished, it is potentially problematic for defendants — even outside the asbestos arena. Kesner generalizes its holding from asbestos exposure to all “toxins” generally: “It may be true . . . that asbestos is already the subject of strict regulation under both federal and California law [and that liability will not likely] do anything to prevent future asbestos-related injuries. Yet, asbestos is not the only toxin to which an employer’s obligations apply. A rule of law that holds an employer responsible to avoid injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing process can be expected to prevent harm to others in the future.”

Full disclosure: Don Willenburg, leader of Gordon & Rees’s Appellate Practice Group, filed an amicus brief supporting the defense position on behalf of the Association of Defense Counsel of Northern California and Nevada.

The typical “take-home” plaintiff is a bystander such as the child who claims she was exposed to asbestos while playing in the basement where her father’s work clothes covered with asbestos dust were laundered. Across the United States, the battle lines are being drawn in these “take-home” or “household” asbestos cases. In a prior article, we examined how various courts around the country analyzed the issues of "duty" and "forseeability" presented by these cases.

On July 8, 2013, the Maryland Court of Appeals, in a case titled Georgia-Pacific LLC v. Farrar, reversed a lower court judgment in a case involving “take-home” for “household” asbestos exposure. The court rejected the trial court’s use of a broad foreseeability standard to identify the scope of a product manufacturer’s duty. Rather, the appeals court adopted a standard that examined foreseeability based on scientific knowledge about the potential harm to non-users at the time the product was used. At the same time, the court also offered a healthy dose of skepticism whether it was even feasible to warn non-users of product dangers.

The Maryland high court relied, in part, upon a 2005 New York State Court of Appeals holding in Matter of NYC Asbestos Litigation. In that case, the plaintiff John Holdampf was employed by the Port Authority from 1960-1996 in various blue collar positions, during which time Holdampf was exposed to asbestos. Although the Port Authority offered laundry service, much of the time he opted to bring his dirty work clothes home for cleaning for reasons of convenience and because there were no showers available at work.

Elizabeth Holdampf, who washed her husband’s soiled uniforms, was diagnosed with mesothelioma in August 2001. In ruling on behalf of the Port Authority, the Court of Appeals rejected her argument that the Port Authority’s status as an employer placed it in a position to control or prevent John Holdampf from going home with asbestos-contaminated work clothes or to provide warnings to him and other employees and through them, to household members such as her.

The New York high court was also skeptical of plaintiff’s assurances that a ruling in favor of Elizabeth Holdampf would not result in “limitless liability” finding that drawing a line, once a precedent was established, would not be so easy to draw. The Court of Appeals’ cautionary language concerning the risk of potentially "limitless liability" is instructive.

In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to ‘limitless liability’ because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises.

This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short … the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the Port Authority and [plaintiff].

Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality

Despite the cautionary alarm sounded by the New York Court of Appeals concerning the danger of "limitless liability", New York trial courts continue to distinguish cases on their facts to permit recovery for "take-home" claimants.

On May 13, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for summary judgment brought by the Long Island Railroad (“LIRR”) in Frieder v. Long Island Railroad, a case in which the injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. Frieder spent seven years working in a diner (appropriately named, as any LIRR commuter would agree, the "’Dashing Dan Diner) located within the gated premises of the LIRR’s Morris Park train repair yard, where asbestos-containing materials were used “routinely” by the LIRR.

Judge Heitler determined that while Mr. Frieder never worked hands-on with asbestos, he testified that a “couple hundred” LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner “they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off” causing “dust all over the place” that required Mr. Frieder and other diner workers to perform “really heavy sweeping and cleanup of the diner.”

Judge Heitler ruled that the Court of Appeals holding in Holdampf could not be relied upon by the LIRR because the facts presented in Frieder were different, to wit, LIRR had control of the workplace where the dinner was located (inside the walls of the rail yard). Under this unique set of facts, she reasoned, her ruling would neither run afoul of Holdampf nor open the floodgates of "limitless liability". Based upon her discussion of the "take-home" case law, Judge Heitler appears prepared to apply the brakes to "take-home" asbestos claims in New York City.

Latham & Watkins performs a national survey of “take-home” exposure claims. They observe that a plaintiff’s success in these claims depends heavily on whether the court applies a “relationship” or “foreseeability” analysis. The defense-favorable “relationship” analysis focuses on the nexus between the plaintiff and the defendant company. Without the ability to show a close relationship, the article points out, the “relationship” courts have been unwilling to impose a duty. The plaintiff-favorable “foreseeability” test, on the other hand, focuses on whether a risk of harm reasonably could have been predicted. The application of these two approaches creates very different results. For example, in CSX Transportation, Inc. v. Williams, 608 S.E. 2d 208 (Ga. 2005), the Supreme Court of Georgia declined to impose liability on an employer as the result of the non-employee plaintiff coming into contact with asbestos-tainted work clothing at the employee’s home. Although the Georgia court recognized that “an employer owes a duty to his employee to furnish a reasonably safe place to work,” the court found that this duty did not extend to third-parties who came into contact with the asbestos-tainted work clothing away from the workplace. Clearly, if the George Supreme Court had applied a foreseeability analysis, the result would have been very different. Courts that apply a foreseeability analysis often infer that companies should have known of the risk of harm to secondarily exposed persons because of their knowledge that asbestos exposure is dangerous generally. For example, in Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006), the court found that a risk of injury to the employee’s spouse should have been foreseeable to the defendant because it was aware of the risk of injury due to an asbestos exposure of sufficient duration and intensity. The problem with this line of cases is the failure to examine whether the bystander risk was actually reasonably foreseeable as of the date of alleged exposure.

Recently, some “foreseeability” courts have been applying a more rigorous analysis in determining whether a “bystander exposure” risk was foreseeable. In Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) (applying Kentucky law), the Sixth Circuit held that no duty was owed by the defendant because there was no evidence that a “bystander exposure” risk was foreseeable during the 1951-1963 time frame, when the alleged negligence occurred. In Martin, and other recent cases, courts examined the scientific literature to determine precisely when the defendant “should have known” about any alleged harm. The Sixth Circuit observed that although studies existed regarding exposure of workers and neighbors to asbestos emissions in factories and mines, the first studies on family members of asbestos-exposed workers were not published until 1965. Accordingly, the Sixth Circuit determined that the risk to plaintiff Martin was not foreseeable. In June 2011, an Illinois appellate court dismissed a “take-home” exposure case in Estate of Holmes v. Pneumo Abex, 2011 WL 2517420 (Ill. App. Ct. 4th Dist. June 22, 2011), where the court made clear that the plaintiff, to prevail, had to show that the defendants were “aware of concrete evidence of take-home exposure as opposed to the more prevalent literature involving direct exposure.” Thus, these cases signal a willingness by some courts to more closely examine historical knowledge and scientific information when applying the “foreseeability” test to take-home claims.

Address

About Gordon & Rees

Gordon & Rees is a national litigation and business transactions firm with more than 800 attorneys across the United States. We deliver maximum value to our clients by combining the resources, size, and scale of a full-service national firm with the responsiveness, flexibility, and local knowledge of a regional firm.